Opinion
NO. 23-CA-489
05-01-2024
German LOPEZ v. Allen HUTH, Allstate Insurance Company, John Doe, Michael Maples and ABC Insurance Company
COUNSEL FOR PLAINTIFF/APPELLANT, GERMAN LOPEZ, Ivan A. Orihuela, Kenner COUNSEL FOR DEFENDANT/APPELLEE, ALLEN HUTH AND ALLSTATE INSURANCE COMPANY, Wade A. Johnson, New Orleans
ON APPEAL FROM THE TWENTYFOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, NO. 805-418, DIVISION "D", HONORABLE SCOTT U. SCHLEGEL, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, GERMAN LOPEZ, Ivan A. Orihuela, Kenner
COUNSEL FOR DEFENDANT/APPELLEE, ALLEN HUTH AND ALLSTATE INSURANCE COMPANY, Wade A. Johnson, New Orleans Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Mindhorst
WICKER, J.
1In this personal injury case, plaintiff appeals the trial court’s June 26, 2023 judgment in favor of defendants, dismissing his lawsuit with prejudice. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
This case arises from rear-end, motor vehicle collisions involving three vehicles on May 2, 2019, in Jefferson Parish. Plaintiff, German Lopez, was operating the lead vehicle, followed by a vehicle operated by defendant, Allen Huth. A third vehicle owned by Michael Maples was behind Mr. Huth. On March 20, 2020, Mr. Lopez filed this lawsuit against Mr. Huth and his insurer, Allstate Insurance Company ("Allstate"), and others, seeking recovery for the personal injury and property damages he allegedly sustained in the accident.
According to the police report, the driver of the third vehicle, a Nissan Titan truck, fled the scene on foot prior to the arrival of the police.
Mr. Maples, "John Doe," and "ABC Insurance Company" were also named as defendants.
In his petition for damages, Mr. Lopez asserted he was operating a Toyota Tacoma on Causeway Boulevard in Metairie when he was struck from behind by a black Chevrolet 1500 truck operated by Mr. Huth. Mr. Lopez further contended that shortly after the colliding with his vehicle, Mr. Huth’s vehicle was struck from behind by a Nissan Titan owned by Mr. Maples and operated by "John Doe," thereby causing Mr. Huth’s vehicle to strike his vehicle a second time.
On August 18, 2020, Mr. Huth and Allstate filed an answer, generally denying the allegations of the petition and asserting Mr. Lopez and/or the third motorist was at fault.
Trial of this matter was held on May 5, 2023. Mr. Lopez and Mr. Huth testified as to their versions of the accident. Prior to taking testimony, the trial court admitted several exhibits into evidence, pursuant to stipulation of the parties, 2including Mr. Lopez’s medical records and bills, a nonjury stipulation, the police report, and a certified declarations page from Mr. Huth’s Allstate policy.
Mr. Lopez testified, via a Spanish interpreter, that on May 2, 2019, he was driving his Toyota Tacoma on Causeway Boulevard. He slowed down to five or ten miles per hour because the traffic ahead of him was stopping. Mr. Lopez stated he saw a black truck coming from behind him in his rearview mirror, and it struck his vehicle in the rear. He then heard another crash behind him. He stated he only felt one impact. Mr. Lopez testified that he did not see the black truck come to a stop before impacting his vehicle; rather, he saw it coming "at close speed" behind him.
According to Mr. Lopez, after the police, fire department, and ambulance arrived, a police officer asked if he spoke English. Mr. Lopez indicated he did not, so they did not speak any further. Although the police report indicates Mr. Lopez advised that he heard a loud crash coming from behind him and then was struck in the rear by Mr. Huth’s vehicle, Mr. Lopez maintained he did not speak to the officer or make this statement. He asserted that his wife and her friend arrived and offered to interpret for him, but the police officer said no.
Mr. Lopez testified that when his vehicle was struck, the impact was strong and caused several parts of his body to hit the interior of the vehicle. He stated he was taken to the hospital by ambulance and released hours later. Approximately four days after the accident, he went to a clinic and began receiving therapy for his knee, shoulder, wrist, head, back, and neck. Mr. Lopez testified he was treated for injuries arising from the accident for about six months until they resolved. Mr. Lopez also stated that the back of his vehicle sustained damage, and he paid $5,700 for repairs.
The receipt for Mr. Lopez’s vehicle repairs was admitted into evidence without objection.
3On cross-examination, Mr. Lopez testified he did not have a driver’s license at the time of the accident and had never had one since he came to the United States in August of 2007. He admitted he did not see the vehicle that hit Mr. Huth’s truck from behind, or anything behind Mr. Huth’s black truck, and did not know what happened between those two vehicles prior to the impact with his vehicle. Mr. Lopez testified he did not hear any sounds or noise before his vehicle was impacted. When asked about the police officer’s report indicating that Mr. Lopez had heard a loud crashing sound coming from behind him just before his vehicle was struck, Mr. Lopez reiterated he never spoke to the police officer.
Allen Huth testified that on May 2, 2019, at approximately 6:00 p.m., he was in the right-hand lane of Causeway Boulevard traveling northbound and came to a complete stop due to heavy traffic. He was stopped for a minute or two when he noticed in his rearview mirror a vehicle coming behind him that was not stopping. Mr. Huth stated he "just held on" as his vehicle was struck in the rear by a Nissan Titan and pushed forward into Mr. Lopez’s vehicle. According to Mr. Huth, he had his foot on the brake, but was unable to avoid striking Mr. Lopez’s vehicle, which was "parked" in front of him. He stated he was far enough behind Mr. Lopez’s vehicle to see his tailgate and lights while he was stopped behind him.
On cross-examination, Mr. Huth agreed when plaintiff’s counsel asked if he lost control of his vehicle after he was struck from behind and pushed forward. He also agreed he was unable to steer left or right to avoid Mr. Lopez’s vehicle because he lost control of his vehicle with the impact. Mr. Huth stated he was jarred after the impact and initially knocked unconscious.
Mr. Huth identified photographs of the back of his truck and the front of the Nissan Titan truck that hit him from behind. Mr. Huth did not recall any damage 4to the front of his vehicle but indicated his truck was "totaled" due to the rear damage. Mr. Huth left the scene in an ambulance.
These photographs were admitted into evidence without objection.
In the police report, which was admitted by stipulation of the parties in lieu of live testimony, Officer Gabriel Roques indicated that Mr. Huth advised him that he was struck from behind and pushed forward into Mr. Lopez’s vehicle. The officer indicated he noticed minor damage to the front of Mr. Huth’s truck and moderate/severe damage to the back. Officer Roques further indicated that Mr. Lopez advised him he heard a loud crashing sound behind his vehicle and was struck in the rear "right after hearing the crashing sound."
At the conclusion of trial, the trial court allowed the parties additional time to submit post-trial memoranda. On June 19, 2023, counsel for the parties appeared, and the trial court rendered judgment in favor of Mr. Huth and Allstate. The court found Mr. Lopez failed to meet his burden of proof, and it provided reasons for judgment, On June 26, 2023, the trial court signed a written judgment in favor of defendants, dismissing plaintiff’s lawsuit at his costs. Mr. Lopez appeals.
LAW AND DISCUSSION
On appeal, Mr. Lopez argues the trial court erred by ruling in favor of Mr. Huth and Allstate, finding that he failed to carry his burden of proof. He asserts that the following motorist presumption of fault should have been applied, because it is undisputed that Mr. Huth’s truck rear-ended his vehicle. He claims the trial court erred by failing to apply this presumption or by finding Mr. Huth rebutted it. Mr. Lopez asks this Court to reverse the trial court’s judgment.
Mr. Huth and Allstate respond that there is no error in the trial court’s judgment, where the court weighed the evidence presented and reasonably found Mr. Huth’s vehicle was struck in the rear and pushed into Mr. Lopez’s vehicle. They assert that even though Mr. Huth’s vehicle struck the rear of Mr. Lopez’s 5vehicle, this was not a "textbook rear end accident" and they overcame the presumption of fault for a following motorist.
La. R.S. 32:81(A) provides:
The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.
[1] Louisiana law has established a presumption that a following motorist who strikes a preceding motorist from the rear has breached the standard of conduct set forth in La. R.S. 32:81 and is, therefore, liable for the accident. Smith v. Murret, 21-662 (La. App. 5 Cir. 8/3/22), 347 So.3d 1126, 1130. This presumption is based on the theory that a following motorist whose vehicle rear-ends a preceding vehicle either has failed to fulfill his duty to maintain a sharp lookout, or has followed at a distance from the preceding vehicle that is insufficient to allow him to stop safely under normal circumstances. Id.; Harris v. Louisiana State Police, et al., 23-67 (La. App. 5 Cir. 11/8/23), 377 So.3d 363, 368; Antill v. State Farm Mutual Ins. Co., 20-131 (La. App. 5 Cir. 12/2/20), 308 So.3d 388, 403.
[2, 3] However, the following motorist presumption of fault is rebuttable. A following motorist may prove lack of fault and rebut this presumption by establishing he had his vehicle under control, closely observed the lead vehicle, and followed at a safe distance. McGowan v. Loupe, 08-810 (La. App. 5 Cir. 3/24/09), 11 So.3d 24, 26; Phipps v. Allstate Ins. Co., 05-651 (La. App. 5 Cir. 2/27/06), 924 So.2d 1081, 1084.
[4] In the present case, the testimony and evidence established that Mr. Huth was traveling behind Mr. Lopez and rear-ended his vehicle. Therefore, the following motorist presumption applies here. Accordingly, it was Mr. Huth’s burden to rebut the presumption of fault by proving he had his vehicle in control, closely observed Mr. Lopez’s vehicle, and followed it at a safe distance.
[5–7] 6It is well-settled that an appellate court may not set aside the trial court’s findings of fact in the absence of manifest error or unless the findings are clearly wrong. McGowan, 11 So.3d at 26; Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Reasonable inferences and reasonable assessments of the credibility of witnesses may not be disturbed by a court of appeal, even if it is convinced that its inferences and assessments are as reasonable. Johnson v. Progressive Sec. Ins. Co., 21-47 (La. App. 3 Cir. 6/9/21), 321 So.3d 1066, 1070; Rosell, 549 So.2d at 844. The issue to be resolved by the appellate court is not whether the factfinder was right or wrong, but whether its conclusion was a reasonable one. Dennison v. Incorporated WHC, 04-304 (La. App. 5 Cir. 9/28/04), 885 So.2d 16, 21; Stobart v. State, through DOTD, 617 So.2d 880, 882 (La. 1993).
[8, 9] The trier of fact is charged with assessing the credibility of the witnesses and, in doing so, is free to accept or reject, in whole or in part, the testimony of any witness. Johnson v. State Through Dep’t of Transportation & Dev., 17-0973 (La. App. 1 Cir. 4/3/19), 275 So.3d 879, 904, writ denied, 19-676 (La. 9/6/19), 278 So.3d 970. When the trial court’s findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the factfinder’s conclusions because "only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said." Smith, 347 So.3d at 1129; Palmisano v. Ohler, 16-160 (La. App. 5 Cir. 12/7/16), 204 So.3d 1134, 1137-38; Rosell, 549 So.2d at 844.
This case presented conflicting testimony as to whether Mr. Huth’s vehicle was struck by the Maples vehicle and pushed into Mr. Lopez’s vehicle, or whether Mr. Huth’s vehicle hit Mr. Lopez’s vehicle prior to being struck from behind by the Maples vehicle. The parties also disagreed as to whether Mr. Huth was stopped or moving just before the collision between the Huth and Lopez vehicles.
7Mr. Lopez contends he saw Mr. Huth’s truck approaching in his rearview mirror and it struck his vehicle first, before he heard Mr. Huth’s vehicle being struck by another vehicle. However, he also testified that he only felt one impact, which seems unlikely if he was struck by Mr. Huth first and then Mr. Huth was struck by the Maples vehicle. We also point out that in his petition, Mr. Lopez alleged that his vehicle was struck by Mr. Huth’s vehicle and then struck a second time when the Maples vehicle hit Mr. Huth from behind. Further, Mr. Lopez admitted he did not know what happened between Mr. Huth’s truck and the Maples vehicle prior to the impact with his vehicle. In addition, although Mr. Lopez denied speaking with him, Officer Roques indicated in the police report that Mr. Lopez advised that he was struck in the rear right after hearing a crashing sound.
Mr. Lopez argues that Mr. Huth and Allstate did not rebut the following motorist presumption of fault, because they failed to prove Mr. Huth had his vehicle under control and followed at a safe distance. He claims Mr. Huth admitted he was negligent when he testified he lost control of his vehicle and could not steer away from striking Mr. Lopez’s vehicle. However, Mr. Huth agreed that he was jarred and lost control of his vehicle after he was struck from behind and pushed forward. There is no evidence that Mr. Huth failed to maintain control of his vehicle prior to being hit from behind. Mr. Lopez further avers that Mr. Huth was not following Mr. Lopez at a safe distance, because Mr. Huth indicated he could not avoid striking Mr. Lopez’s vehicle, but Mr. Lopez was able to avoid striking the vehicle in front of him. The fact that Mr. Lopez did not strike the vehicle in front of him has no bearing on whether or not Mr. Huth was following at a safe distance, especially where Mr. Huth testified he was stopped prior to being struck by the Maples vehicle and pushed into Mr. Lopez’s vehicle.
8When rendering judgment, the trial court stated that the police report indicated minimum damage to the front of Mr. Huth’s vehicle, suggesting he was pushed into Mr. Lopez. The photographs of Mr. Huth’s vehicle and the front of the Maples vehicle support a finding that there was a strong impact between the Maples and Huth vehicles. Although the bill for repairs to Mr. Lopez’s vehicle was admitted, no photographs of his vehicle were introduced.
[10] Mr. Lopez maintains the trial court erred by affording more weight to the "after the fact" police report than to his testimony, when it based its decision on the inconsistency between Mr. Lopez’s testimony and the police report. He points out that the trial court did not state in its reasons for judgment that Mr. Lopez was not credible, so his testimony as a fact witness should have been given greater weight than the police report. However, the inconsistency between Mr. Lopez’s testimony and the police report was not the only basis for the trial court’s ruling. Mr. Lopez and Mr. Huth presented two versions of the accident. Mr. Lopez testified Mr. Huth’s vehicle was coming "at close speed" behind him and hit his vehicle first, whereas Mr. Huth testified that his vehicle was stopped until he was pushed into the rear of Mr. Lopez’s vehicle. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. Henderson v. Nissan Motor Corporation, 03-606 (La. 2/6/04), 869 So.2d 62, 69; Stobart v. State, 617 So.2d 880, 883 (La. 1993).
Although it did not specifically state that it found Mr. Lopez’s testimony was not credible, the trial court certainly had to make credibility determinations when assessing the testimony of the two witnesses. The trial court concluded Mr. Huth’s vehicle was struck from behind and pushed into Mr. Lopez’s vehicle. Accordingly, it found Mr. Huth proved he was not at fault and Mr. Lopez did not prove his case.
9Based on the testimony and evidence, we find no basis to overturn the trial court’s judgment. The trial court’s findings of fact were not manifestly erroneous and its credibility assessments were reasonable.
DECREE
For the reasons stated above, we affirm the trial court’s June 26, 2023 judgment in favor of defendants, dismissing plaintiff’s case with prejudice.
AFFIRMED